Friday, May 02, 2008

"If the Legislature wanted to stop this stuff, it could - even when Perry plays hard ball."

Will new commissioners improve TxDOT?

5/2/08

by William LutzVolume 12 Issue 26Lone Star Report

Gov. Rick Perry appointed two new members of the Texas Transportation Commission April 30, his former chief of staff, Deirdre Delisi of Austin and William Meadows of Fort Worth, a member of the North Texas Tollway Authority Board.

The appointment of a former Perry staffer to a key government post is consistent with Perry's appointment pattern, which isn't always well-received at the Capitol.

Some Capitol hands view Delisi's appointment as a sign the Legislature can expect more of the same from the Texas Department of Transportation (TxDOT). Sen. John Carona (R-Dallas), chairman of the Senate Committee on Transportation and Homeland Security, even tried to discourage Perry appointing her.

Both appointments are subject to Senate confirmation, but in the past, some GOP senators - despite talking a good, independent game early in the session - don't seem to have much stomach for a fight with the Governor in mid-May of session years. Therefore, Delisi's confirmation is likely.

Still, the agency has an opportunity here. Its reputation with legislators and grass-roots conservatives has nowhere to go but up. And it will need some credibility because its authority to sign comprehensive development agreements expires in 2009.

(A comprehensive development agreement is a contract whereby the state rents right-of-way to a private company and gives it the exclusive right to build and operate a toll road.) Here are some areas the new commissioners need to address, if the commission wishes to improve its reputation.

Current transportation policy was sold to lawmakers under false pretenses. That is, the omnibus transportation bill of 2003 was promoted to lawmakers as "local control" and "more tools in the toolbox." Lawmakers thought they passed a bill that let local leaders use new financing tools if they wanted to for building local highways faster.

But that's a far cry from what was delivered. No one told lawmakers in 2003 or 2005 that the Texas Department of Transportation was going to try to shake down the Harris County Toll Road Authority for cash when it wanted to build new toll roads. Nor did anyone tell them the transportation commission would favor private contractors over local non-profit toll authorities for the right to build and maintain roads. Nor did anyone mention that the primary driver behind building toll roads was the desire to raise tolls artificially high to generate cash that could be siphoned off to other roads that can't be built with tolls. The bills passed in 2007 were an attempt by the Legislature to fix all of these problems.

Had the agency let local leaders help decide how much revenue to extract from local motorists, the issue wouldn't get as much blow-back at the Capitol.

The public doesn't understand the state's transportation dilemma and doesn't trust TxDOT. Lawmakers and others have pointed this fact out repeatedly to the agency. Yet its response was to run a political PR campaign promoting privatized toll roads.

There's a difference between being transparent and building trust and using government resources for political purposes. Lawmakers wanted the former. TxDOT provided the latter.

The clarity and transparency of the agency's explanations of the state's financial situation could use improvement. There is also a need for the agency to explain and justify the fact that construction costs have risen dramatically faster than inflation.

The agency and its supporters have shown flagrant disregard for the public's right-to-know. If these comprehensive development agreements are really so great - as Perry claims - then why is the agency afraid to let the public see them before they are a done deal and the state is stuck with them for 50 years?

A provision was quietly slipped into a transportation bill in 2005 that exempts any part of any proposal for a comprehensive development agreement from public disclosure - even under criminal subpoena.This blanket secrecy provision, found in section 223.204 of the Transportation Code, includes draft contracts between the agency and private vendors (like Cintra). This provision became a campaign issue in 2006, when Comptroller Carole Keeton Strayhorn and the Houston Chronicle demanded the release of the draft agreement between Cintra and the Texas Department of Transportation to develop the Trans-Texas Corridor 35 project.

The public explanation usually given when this provision is published is that a draft contract between the state and a private company is proprietary and contains trade secrets. The problem with that argument is that state law has always provided an exception to public disclosure for real trade secrets - provided that the Attorney General and the courts agree that the material is actually proprietary.

In short , it is fair to question whether the rationale for the blanket exemption from public disclosure is driven by politics. If the public can't see contracts that bind the state for 50 years until after they have been approved and are then a done deal, then opposition is less likely to materialize. There will be less debate over the toll rates and non-compete clauses, for example.

Thanks to Sen. Jane Nelson (R-Lewisville), in 2007, the Legislature passed a "truth in tolling" provision that requires the agency to publish toll rates and other key information before finalizing a toll contract.

But shouldn't the public have the right to see the whole contract in advance of its approval? Will the new commissioners support additional public disclosure of toll road contracts or will they defend secret, special-interest government at its absolute worst?

The agency has not shown the Legislature the respect it deserves. The current executive director of TxDOT has made some improvements in this area. But in 2005, 2006, and early 2007 the agency and the commission showed an appalling lack of respect to lawmakers. Commissioners would seldom attend legislative hearings and regularly picked petty fights with key legislative players.

Carona - the chairman of the Senate committee overseeing TxDOT - had to go to the House and create a big public showdown in 2007 just to get a meeting with the then-chairman of the Texas Transportation Commission. Simply respecting the process - as TxDOT has begun to do in recent months - will go a long way toward building bridges with lawmakers.

The agency is perceived as having a "my way or the highway" approach. It seems that every action the agency takes is designed to build support for privately-run toll roads.

If the commission came up with and supported a more balanced approach, it might get a more receptive audience for its ideas. Not every road has to be a toll road built and financed by Cintra.

A little common sense will help, sometimes. TxDOT seems to have a way of dumping gasoline on the fire. A good example was right after the 2007 legislative session (when the Legislature banned cities from issuing speeding tickets with automated cameras) when TxDOT put up automated cameras in a rural part of Interstate 10 to issue speed warnings. No wonder rural folk don't trust TxDOT!

TxDOT is still under the Governor's control and its tolling policies have not been repealed, largely due to a lack of legislative will-power.

If the Legislature wanted to stop this stuff, it could - even when Perry plays hard ball. Lawmakers can override vetoes. They can brave special sessions. They could make life unpleasant for the governor by holding hearings into the revolving door between the governor's office and certain transportation contractors (including issuing subpoenas to transportation lobbyists who used to work for Perry). They can propose new ethics and campaign contribution legislation.

The agency is up for Sunset in 2009, and the Legislature could easily have someone besides the Governor appointing its board. Or it could allow Comprehensive Development Agreement authority to expire.

But if the new commissioners take a more cooperative approach to transportation, the Legislature may conclude that none of the above steps are necessary.

In other words, the new commissioners are coming in under a cloud, but they also still have an opportunity to make changes - if they want to.

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